Pending
before the Court is the State's Amended Motion for
Rehearing En Banc, which the Court construes as a motion for
en banc reconsideration. See Tex. R. App. P. 49.7.
We grant the motion and withdraw our original opinion and
judgment, dated March 9, 2017, and we substitute the
following opinion, dissenting opinion, and the accompanying
judgment.

Appellant
Sandra Coy Briggs challenges the trial court's denial of
her motion for new trial. By three issues, which we have
reorganized and renumbered, Briggs contends the trial court
abused its discretion when it denied her motion for new trial
because: (1) it failed to rule on the issues presented; (2)
Briggs's plea was not voluntary because it was induced by
a misrepresentation of the law; and (3) the trial court's
findings regarding exigent circumstances are not supported by
the record. We reverse and remand.

It is
undisputed that on January 12, 2012, after being admonished
by the trial court, Briggs pleaded no contest to the charge
of intoxication manslaughter of a public servant without a
plea bargain agreement and elected to have a jury assess her
punishment. See Tex. Transp. Code Ann. §
724.012(b)(1) (West, Westlaw through 2017 1st C.S.). On
January 20, 2012, after a hearing where the trial court
admitted Briggs's blood results that showed a
blood-alcohol level of .14 percent at the time of the draw,
the jury found Briggs guilty of intoxication manslaughter of
a public servant, found her vehicle a deadly weapon used or
exhibited during the commission of the offense, and sentenced
Briggs to forty-five years in the Texas Department of
Criminal Justice-Institutional Division.

Briggs
filed neither a timely motion for new trial nor a timely
notice of appeal. However, the Texas Court of Criminal
Appeals granted Briggs's application for a writ of habeas
corpus, finding that Briggs was "entitled to the
opportunity to file an out-of-time appeal" in this
matter.[2]Ex parte Briggs, No. WR-82,
035-01, 2014 WL 5369818, at *1 (Tex. Crim. App. Sept. 24,
2014) (per curiam) (not designated for publication). The
court of criminal appeals also determined that "[a]ll
time limits shall be calculated as if the sentence had been
imposed on the date on which the mandate of this Court
issued, " which was December 10, 2014. Id. In
other words, the court concluded that Briggs's case was
not yet final.[3]See id.

After
mandate issued from the court of criminal appeals, Briggs
filed her motion for new trial, urging, in relevant part,
that she did not enter her plea voluntarily because counsel
misrepresented the admissibility of her blood alcohol results
under Texas Transportation Code section
724.012.[4]See Tex. Transp. Code Ann. §
724.012. Briggs noted that, according to the police report
attached to her motion, her warrantless blood draw was not
taken pursuant to a recognized exception to the warrant
requirement. Instead, according to the report, the
warrantless draw was accomplished pursuant to the mandatory
provisions of section 724.012 because an individual had
suffered serious bodily injury and later death from the
accident. See id. Briggs claimed that the
admissibility of her blood test results was a determining
factor in deciding to plead no contest to the charges,
instead of exercising her right to a trial. Briggs also
discussed the applicability of Missouri v. McNeely
and opinions issued by Texas courts subsequent to her
sentencing. See133 S.Ct. 1552, 1558 (2013); see
also, e.g., State v. Villarreal, 475 S.W.3d 784, 813
(Tex. Crim. App. 2015) (op. on reh'g); Weems v.
State, 434 S.W.3d 655, 659-60 (Tex. App.-San Antonio
2014), aff'd,493 S.W.3d 574');">493 S.W.3d 574, 582 (Tex. Crim.
App. 2016).

On
February 18, 2015, at the hearing on her motion for new
trial, Briggs's trial counsel Ed Piker explained that his
chief concern in the case had been the blood evidence secured
as a result of a warrantless search. According to Piker,
because the blood evidence was a significant problem for the
defense, his ultimate goal had been to either discredit the
blood evidence or keep it from coming in at trial. Piker
testified that they considered a number of ways to challenge
the admission of the blood evidence, but were unable to come
up with an approach that would form the basis for a motion to
suppress or that would keep the evidence out at trial.
Instead, based on Piker's understanding of the law at the
time-that a mandatory blood draw without the necessity of a
warrant was proper in the event of serious bodily injury or
death resulting from an accident-they decided Piker would not
file a motion to suppress and Briggs would plead no contest
and would allow a jury to assess punishment. Piker explained
that he would have filed a motion to suppress had he
understood the cases to hold that the transportation code
cannot mandate a warrantless blood draw absent exigent
circumstances, which he did not believe existed in this case
"because [Briggs] was in custody from the very
beginning." See, e.g., McNeely, 133 S.Ct. at
1558 (reaffirming Schmerber v. California, 384 U.S.
757, 767 (1966)); Villarreal, 475 S.W.3d at 813;
Weems, 434 S.W.3d at 659-60. Piker stated that he
would have advised Briggs to proceed to trial if the trial
court had ordered the blood evidence suppressed.

Briggs
also testified at the hearing on her motion for new trial.
Briggs explained that she did not consent to have her blood
drawn, but that an officer ordered it drawn based on the
Texas blood-draw statute. See Tex. Transp. Code Ann.
§ 724.012(b)(1). Briggs testified that she discussed the
matter with Piker and was aware that the blood evidence would
be problematic if she went to trial. She believed that the
trial court would admit her blood evidence at trial, and if
there had been a way to keep it from being used against her
at trial, she would have wanted a trial.[5]

After
Briggs and the State rested and presented closing arguments
at the motion-for-new-trial hearing, the trial court asked
the State if it had "any exigent circumstances it
[could] point to in this case with Ms. Briggs, assuming that
the statute is unconstitutional and could not be effective
for the State in this case?" The trial court continued:
"Was there any other procedure that the officers could
rely upon or the State could rely upon to say this was an
exigent circumstance in this particular case and that's
why a warrant would not have been able to have been obtained
in the first place?"

In
response to the trial court's questions, counsel for the
State identified what he believed were exigent circumstances
that night, but also informed the court that he "was not
the trial attorney on that case at trial" and did not
"know if the detectives handling the case were asked
about [other fatalities going on that night] at trial."
Counsel commented that he "didn't know if [the
court] wanted to hear from an additional witness specifically
regarding exigent circumstances or not." The trial court
responded, "I'd like to, " and allowed the
State to call Sergeant Scott Foulke, a detective with the San
Antonio Police Department's Traffic Investigation Unit,
Homicide Division, who was at the scene that night.

Before
Sgt. Foulke testified, Briggs made the following objection:

I object to this line of testimony for one issue. We're
not here on factual exigency circumstance basis in the Motion
for New Trial. It's on whether or not the
misrepresentations about the law to Ms. Briggs would have
changed the course of how they proceeded with the case. And
Mr. Piker and Ms. Briggs both testified that they would have
done something differently. That's the standard that she
needs to prove in order to obtain a new trial on an
involuntary plea, so I would object to this line of
testimony.

The
trial court overruled this objection.

Sgt.
Foulke provided testimony regarding the events of the night
in question and his investigation, testimony that Briggs now
argues completely contradicted the testimony of other
officers at the punishment hearing in 2012. Nonetheless, at
the hearing Sgt. Foulke explained, among other things, that
"[a]nytime it involves a crash or a fatal or a
near-fatal incident, it's always exigent because you want
that sample as close to the time of the crash so it's the
most accurate. And so anytime we deal with something like
this, we're under exigent circumstances." After Sgt.
Foulke testified, the trial court recessed the hearing.

When
the trial court reconvened the hearing two days later, it
made the following oral findings:

After considering the motion, the testimony, exhibits, the
case law, arguments, and the defendant's latest filing of
Supplemental Motion for New Trial, I find that the defendant
is in a posture to request a new trial. Once the appellate
courts granted an out-of-time appeal, that puts her in a
position to validly request a new trial.

I also find that she is no longer under a final judgment due
to the out-of-time appeal. That being the case, she's
entitled to have the law applied to her case that is in
effect now and not at the time of the trial. Therefore, I
find that McNeely can be applied retroactively to
the defendant's case. However, when applying
McNeely, I do not believe that McNeely
affords relief for the defendant.

McNeely provided that the deterioration of blood
evidence alone is not an exigent circumstance to obtain blood
from a suspect without a warrant. McNeely requires a
case-by-case analysis of the facts on the totality of the
circumstances. McNeely did not prohibit warrantless
searches in all circumstances.

Here, the facts show that the police unit dedicated to
traffic fatalities was already involved in investigating an
earlier fatality the same night this defendant caused her
collision. The police relocated to defendant's crime
scene and began their investigation. Due to the circumstances
normal to any collision scene, such as allowing emergency
medical personnel to conduct their procedures, to include
ensuring that the defendant did not need further medical
care, the police were delayed in determining that it was the
defendant's actions that caused the collision. At that
point, nearly three hours had lapsed since the time of the
collision.

This case was not a regular or normal driving while
intoxicated case. It seems that the time period to obtain
blood in a traffic stop resulting in a DWI arrest is closer
to 1.3 hours. Here, it seems that the time was of the essence
before the blood decayed. There were other factors, however.

There was testimony as to Night CID, or Night Criminal
Investigation Division, could have assisted the traffic unit
in obtaining a warrant to draw the blood. Sergeant Foulke
testified that he did not know the status of Night CID at the
time and whether they were already engaged in their own
investigations that night. Common sense would dictate that it
would have taken longer to wait for a Night CID officer to
appear and to have him or her be briefed on the situation in
order for that officer to draft up a search warrant
application.

In addition, Sergeant Foulke testified that to obtain a
warrant would have added an additional 1.5 hours to obtaining
blood evidence. Furthermore, the resources available at the
time of the crime were different than they are now. The
training or manpower for obtaining DWI warrants has, since
the time of the crime, been improved, and the process is now
streamlined under the, quote, "no refusal, "
unquote, program.

For instance, now police officers have laptop computers at
their disposal to draft warrant applications on scene without
returning to the police headquarters, as it would have been
in the defendant's case at that time.

When looking at all the factors in determining whether the
blood could have been drawn without a warrant and considering
that no mention-no Motion to Suppress was filed, it appears
that the application of McNeely does not afford the
defendant relief under new trial procedures via a Motion for
New Trial because I believe obtaining a warrant in this
situation would significantly undermine the efficacy of this
search . . . .

The
trial court made no express oral findings regarding the
voluntariness of Briggs's plea. No written findings
regarding voluntariness appear in the record. See
Tex. R. App. 21.8(b) ("In ruling on a motion for new
trial, the court may make oral or written findings of
fact"). The trial court denied Briggs's motion for
new trial, and this appeal followed.

II.
Application of McNeely and its Progeny

As a
threshold matter, we must determine whether McNeely
and subsequent Texas cases that rely on McNeely
apply in this case. Briggs contends that McNeely
applies because it did not create a new rule but, instead,
followed Fourth Amendment precedent on warrantless searches.
Briggs also asserts that even if McNeely created a
new rule, it still applies because her case is not yet final.

A.
McNeely Did Not Set Out a New Rule

We
agree that McNeely did not set out a new
constitutional rule. See State v. Tercero, 467
S.W.3d 1, 9 (Tex. App.-Houston [1st Dist.] 2015, pet.
ref'd) (citing McNeely, 133 S.Ct. at 1556-58).
McNeely clarified its 1966 Schmerber
holding. Id. (citing McNeely, 133 S.Ct. at
1556-58). In Schmerber, after observing that the
blood-alcohol evidence could have been lost,
"[p]articularly in a case such as this, where time had
to be taken to bring the accused to a hospital and to
investigate the scene of the accident, there was no time to
seek out a magistrate and secure a warrant, " the Court
determined that there were exigent circumstances that
supported a warrantless blood draw. 384 U.S. at 770. The
McNeely Court explained that it applied the totality
of the circumstances approach in
Schmerber-considering all of the facts and
circumstances of that particular case-and recognized that
exigent circumstances might, in limited circumstances,
provide an exception to the warrant requirement. See
Tercero, 467 S.W.3d at 9 (citing McNeely, 133
S.Ct. at 1556-58). The McNeely Court explained that
each case must be decided on its facts, as it did in
Schmerber, and not on a "'considerable
overgeneralization" that a per se rule would reflect.
McNeely, 133 S.Ct. at 1561 (quoting Richards v.
Wisconsin,520 U.S. 385, 393 (1997)). Thus, consistent
with its Schmerber review, the McNeely
Court determined that the natural metabolization of alcohol
in the bloodstream is not a per se exigency that justifies an
exigency exception to the Fourth Amendment's warrant
requirement. Id. at 1556; see also Weems v.
State,493 S.W.3d 574');">493 S.W.3d 574, 578 (Tex. Crim. App. 2016)
(determining that sections of the transportation code that
require a blood draw in certain circumstances do not provide
an exception to the warrant requirement absent exigent
circumstances); Villarreal, 475 S.W.3d at 813
(same); see also Pearson v. State, No. 13-11
-00137-CR, 2014 WL 895509, at *2-4 (Tex. App.- Corpus Christi
Mar. 6, 2014, pet. refd) (mem. op., not designated for
publication) (upholding a warrantless, exigent-circumstances
blood draw).[6]

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